N v. Secretary for Security and Others

HCAL 961/2021

[2022] HKCFI 1388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 961 OF 2021

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AND

HCAL 1034/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1034 OF 2021

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(Heard together)

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DECISION
(EXPERT SUMMONSES)

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Introduction

1.By two summonses both dated 30 November 2021, the Applicants seek to adduce expert evidence from two experts in HCAL 961/2021 and HCAL 1034/2021.  The two cases are set to be heard together in a ‘rolled-up’ hearing fixed on 25 May 2022.

2.On 7 February 2022, I directed that the summonses should be determined on paper. By 4 April 2022, all parties had filed their written submissions.  The Applicants have also filed three sets of affidavit evidence, including one from the Applicants’ instructing solicitors exhibiting the “executive summaries” of the expert evidence sought to be adduced.

3.Post-CJR, the Court will only allow expert evidence if the applicant is able to persuade the Court on the relevance and necessity of the evidence in resolving the live issues arising in the case. The Court will not allow expert evidence simply on the basis that it cannot rule out a possibility of the evidence being relevant and helpful: see Shenzhen Futaihong Precision Industry Company Ltd v BYD Company Ltd [2019] 2 HKC 175 (CA), §12.

4.Having considered the materials, and in exercise of my case management discretion, I dismiss the applications.

5.This is my brief reasoning for the Decision.  In summary, I am not satisfied that the proposed expert opinions from Ms Archana Sinha Kotecha and Professor Lin Feng are relevant, necessary and probative in respect of the Applicants’ intended grounds of review.

Ms Archana Kotecha

6.Ms Kotecha is said to specialize in human trafficking and other human rights abuses.  The Applicants say her evidence is relevant to Grounds 1B, 1C, 2 and 3 in the Form 86s.

7.Grounds 1B and 1C concern the impropriety or flaws in the design and implementation of the HKSARG’s victim screening process.  The Applicants say that the screening process gave rise to conventional administrative law complaints such as unreasonableness and procedural impropriety.  Ground 1C refers to the screening process not being separated from the criminal investigation in the case of one of the Applicants, which gave rise to complaints for breaching her right of silence and right against self-incrimination.  Ground 2 argues that the HKSARG has failed to discharge its investigative duty under Article 4 of the Bill of Rights Ordinance (“BOR4”).

8.The Applicants say Ms Kotecha could assist the Court on Grounds 1B, 1C and 2 by identifying the impropriety and flaws of the HKSARG’s screening process, by making reference to the practices in other jurisdictions.

9.Ground 3 is said to be a systemic challenge that the current patchwork of criminal offences is ineffective and impractical in safeguarding the Applicants’ rights under BOR4. The Applicants say Ms Kotecha’s opinion would go a step further in commenting on the screening process and to show how it is unfit for screening victims under BOR4.  The Applicants say they would then seek to make use of the expert opinion to show the casual link between the shortcomings of the screening process and the need for a bespoke criminal offence prohibiting breaches of BOR4.

10.In short, with respect, I do not see how Ms Kotecha’s opinion is necessary or relevant in resolving Grounds 1B, 1C, 2 or 3.  Whether the facts in the cases of the Applicants gave rise to the breaches by the HKSARG of its duties under administrative law or under BOR4 are questions to be decided by the Court.  The facts relevant for disposal of the challenges are matters to which the Applicants themselves are capable of deposing.

11.Insofar as Ms Kotecha is said to offer evidence on the practices of other jurisdictions, and assuming they would have their own policy or legal framework different from that in Hong Kong, I do not think that evidence about the practice adopted in other jurisdictions would be necessary or relevant for the Court in deciding if the particular facts in the Applicants’ cases have demonstrated breaches of the HKSARG’s duties under the public law of Hong Kong.

12.I also think it fair to say that some of the evidence to be put forward by Ms Kotecha really argues as to some facts which fall to the Court to decide, and to the proper meaning of words, which the Court is well able to determine.  I also think a number of her other points are in essence submissions, which can be made by Counsel for the Applicants.

Professor Lin Feng

13.The Applicants say that Professor Lin’s opinion is relevant to Ground 4B, on the basis that international treaties ratified by the Central People’s Government and declared applicable to Hong Kong gave rise to legitimate expectations that the HKSARG will act in accordance with, or at least in considering, those treaties or conventions.

14.It is well settled that Hong Kong practices what is commonly called the dualist principle.  International treaties are not self-executing and unless and until that they are made part of our domestic law, they do not confer nor impose any rights or obligations on individual citizens: see GA v Director of Immigration (2014) 17 HKCFAR 60 at §58.  The legal effect of such treaties or conventions in Hong Kong are to be determined as a matter of Hong Kong law.

15.I note that even Professor Lin himself recognizes this legal position in §§27 and 28 of his executive summary:

27.       The legal status of such a treaty/convention in the HKSARG will be an issue of domestic law of the HKSRAG.

28.       The enforceability of [such treaty/convention] in the HKSARG will also be an issue of domestic law of the HKSARG.

16.The Applicants seek to get around the dualist principle by suggesting that the obligations imposed by those international treaties or conventions do not fall foul of the dualist principle, at least to the extent of giving rise to enforceable legitimate expectation.  That is a matter to be argued as a matter of Hong Kong law.  I note that the Applicants cite Mok Chi Hung v The Director of Immigration [2001] 2 HKLRD 125 at §11 for their proposition that ratification of international covenants gives rise to legitimate expectation.  Mok Chi Hung in itself suggests that the legal proposition put forward by the Applicants is one under Hong Kong law.

Timetabling

17.I note the summonses were issued in November 2021, and were originally fixed for a date in February 2022 before the matter was directed by me to be dealt with on paper.

18.I also note the relatively tight timetable between the date when submissions were complete, namely 4 April 2022, and the date fixed for the rolled-up hearing, namely 25 May 2022.

19.Whilst the submissions have recognized the need to consider carefully whether the milestone hearing date might be jeopardized, I have not taken timing issues into account in this decision.  It seems to me that the applications fall to be dismissed irrespective of when they were made or determined.

Conclusion

20.Both summonses are dismissed.

21.All questions of costs on the summonses are reserved to the rolled-up hearing.

Mr Kay Chan and Mr Tasman Tam, instructed by Choy Yung & Co., Solicitors, for the applicants in both cases

Mr Jin Pao, SC and Mr Martin Ho, instructed by the Department of Justice, for all putative respondents in both cases